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Employer speculation insufficient to bar applicant with drug conviction from hospital job

January 29th, 2015  |  Ron Miller

Typically it’s a kiss of death for a job applicant to acknowledge that he or she has a criminal history in applying for employment. However, Hawaii has adopted a more enlightened approach which reflects the recognition “that persons who have been in trouble are not inherently and permanently bad and that opportunities afforded other citizens should be made available to them.”

That legislation recently came into play in Shimose v. Hawaii Health Systems Corp. dba Hilo Medical Center, when the Hawaii Supreme Court ruled that a hospital failed to establish the existence of a rational relationship between the position of radiological technician and an applicant’s prior felony drug conviction for possession of crystal methamphetamine so as to support its decision to disqualify him from the position.

Rational relationship standard. Under the provisions of Hawaii Revised Statutes (HRS) Sec. 378-2, employers are allowed to deny employment based on an individual’s conviction record, provided the conviction bears a rational relationship to the duties of the position. The primary issue in this case was whether, as a matter of law, the hospital established the existence of a rational relationship between the radiological technician position and the employee’s prior drug conviction that would entitle it to summary judgment.

Here, the court observed that Sec. 378-2.5 was enacted in 1974, and that the legislature had beat back efforts in 1998 that proposed a dramatic policy reversal. At that time, the legislature reached a compromise to allow consideration of a criminal conviction that bears a “rational relationship to the duties and responsibilities of the position.”

Rational relationship lacking. In this instance, the state high court concluded that the hospital failed to establish a rational relationship between the applicant’s conviction and the duties and responsibilities of a radiological technician. As an initial matter, the court observed that job descriptions indicate that radiological technicians are primarily responsible for medical imaging and the preparation and maintenance of medical imaging equipment. There was no indication that radiological technicians administered or even assisted patients with any type of drugs. Thus, the court found that a felony drug conviction simply had no bearing on an individual’s ability to perform the primary imaging duties of a radiological technician.

Controlled substances. Addressing the hospital’s contention that radiological technicians had access to controlled substances, syringes and needles, and patient charts, the court found that questions of fact remained regarding how a radiological technician could obtain controlled substances from a patient in the course of his or her duties. Moreover, it noted that the hospital did not assert that its patients have access to medication that is left out in a patient’s hospital room. Consequently, the court found there was no reason why an employee with a drug conviction would pose a risk because he or she has access to substances contained in crash carts and drug reaction boxes, since those items were not regulated controlled substances. Accordingly, the court concluded that no rational relationship existed between the applicant’s drug conviction and the core duties of a radiological technician that would entitle the hospital to disqualify him from prospective employment.